Frequently Asked Questions about Copyright and the Use of Copyrighted Material

1. What is a "copyright"?
2. Why is copyright so important?
3. When does copyright "happen"?
4. What is protected by copyright?
5. What are the rights of the copyright holder or creator?
6. How can I tell if something is in the public domain?
7. Is content found on the Internet considered to be in the public domain and therefore not copyright-protected?
8. What is "fair use"?
9. What are some of the exceptions to copyright for educational purposes?
10. Do academic coursepacks require copyright permission?
11. Do academic electronic coursepacks require copyright permission?
12. Do academic e-reserves require copyright permission?
13. How can I get permission to reuse copyrighted materials?
14. What are the consequences of not getting permission to reuse copyrighted works?
15. How do publishers and other rightsholders become aware of infringements of their copyrights?
16. Have companies been sued because of copyright infringement and illegal use of content?
17. What if I cannot locate the owner of the copyrighted material, there is not enough time or it's too expensive?
18. Is there an easier way to obtain/provide permission to reuse copyrighted materials rather than to contact the rightsholder directly?
19. I am looking for additional information on copyright. Where can I go?
20. I am looking to register a copyright for my work (e.g., book, manuscript, sound recording, video, drawing, sculpture, photograph, computer program, game or multimedia work). Who can help me?
21. I am looking for more information on pending congressional bills regarding copyright law. Where do I go?
22. How do I get more general information or access to more resources about copyright law, fair use, the guidelines for classroom copying or the CONTU Guidelines?

1. What is a "copyright"?

   Under the United States Copyright Act found at Title 17 of the U.S. Code, creators of original materials are granted exclusive rights, generally referred to as the creator's "copyrights."

2. Why is copyright so important?

   U.S. copyright law is derived from specific language in the Constitution and exists to foster creativity and spur the distribution of new and original works.

3. When does copyright "happen"?

   Copyright protection exists from the time the work is created in a fixed, tangible form of expression. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author, or those deriving their rights through the author, can rightfully claim copyright. In the case of works made for hire the employer, not the writer, is considered to be the author.

4. What is protected by copyright?

   In the United States, copyright protection is provided by the government to the authors of "original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works." This protection is available to both published and unpublished works, regardless of the nationality or domicile of the author.

5. What are the rights of the copyright holder or creator?

   One of the rights exclusive to copyright holders (rightsholders) is the right to reproduce their works (e.g., photocopies, post to Web sites, etc.). Copyright holders also have the right to prepare derivative works, to distribute copies for sale, and to perform the work publicly, as in the case of motion pictures, videos and plays.

6. How can I tell if something is in the public domain?

   If you are copying directly from an original source published prior to 1900, the work is most likely in the public domain; and you will not need permission to copy it. Any work published or republished after 1900 needs to be researched to determine if it is in the public domain.

   To determine if the work you want to copy is in the public domain, you should contact the rightsholder directly.

7. Is content found on the Internet considered to be in the public domain and therefore not copyright-protected?

   No. The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were. Any content in a non-digital form that is protected by copyright will be protected in a digital form. For example, print books are protected by copyright as are electronic books. Analog musical recordings are protected by copyright as are digital musical recordings. A print letter is protected by copyright as is an e-mail letter (both generally owned by the author of that letter or e-mail). Web sites may be protected by copyright as a single work, and also the many different embedded works that are in that Web site may be individually protected by copyright.

8. What is "fair use"?

   Fair use is primarily intended to allow the use of copyright-protected works for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright-protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove. Whether a certain reproduction or other use of a copyright-protected work is considered fair use is not specifically set out in the Copyright Act. As such, you must determine, based upon the factors in the Copyright Act, whether that particular act may be considered fair use.

   Fair use considers:

   1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes.
   2. The nature of the copyrighted work.
   3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole.
   4. The effect of the use on the potential market for or value of the copyright-protected work.
9. What are some of the exceptions to copyright for educational purposes?

   Specific provisions in the Copyright Act for the use of copyright-protected materials by academic institutions, include: Section 107 on fair use, Section 108 on library reproduction and archiving, Section 109 on first sale, and Section 110 on classroom performance and display.

10. Do academic coursepacks require copyright permission?

    Yes. Prior to 1991, it was commonly believed that reproduction, primarily photocopying, for academic coursepacks fell within the educational reproduction portion of fair use. As a result, coursepack anthologies were often compiled and distributed without the permission of copyright holders. Two court cases-Basics Books Inc. v. Kinko's Graphics Corp. and Princeton University Press v. Michigan Document Services�changed this thinking. Today, coursepacks, which may be a compilation of electronic or photocopied materials, require copyright permission prior to production.

11. Do academic electronic coursepacks require copyright permission?

    Yes. Many instructors are under the mistaken impression that they do not need to obtain copyright permission for content posted online as an electronic coursepack. E-coursepacks, like their paper-based counterparts, require copyright permission from the copyright holder or its agent.

12. Do academic e-reserves require copyright permission?

    As a general rule, if the use of the content would likely be considered fair use in hard copy, it is also likely to be considered fair use in digitized form, whether as part of an e-reserve system or otherwise. The applicability of fair use principles to materials in e-reserve systems depends, as in all fair use cases, on the particular facts and circumstances involved.

13. How can I get permission to reuse copyrighted materials?

    If you would like to reuse copyrighted material in print and digital formats, you must ordinarily first obtain permission from the rightsholder. You can either contact the owners of the copyrighted materials directly or obtain permission from a licensing representative such as Copyright Clearance Center.

14. What are the consequences of not getting permission to reuse copyrighted works?

    The Copyright Act provides for the copyright owner to recover damages for unauthorized use of the owner's works. These damages may include the profits resulting from the infringement, or statutory damages ranging from $250 to $150,000 per willful infringement, as well as legal fees.

15. How do publishers and other rightsholders become aware of infringements of their copyrights?

    Many times a disgruntled employee at a particular organization reports the unlawful use of content to the publisher or Copyright Clearance Center. Many publications place "whistleblower" or "bounty" ads in their own publications that highlight the issue of copyright infringement and offer cash payments for reporting illegal activity.

16. Have organizations been sued because of copyright infringement and illegal use of content?

    Yes. In most instances, cases involving copyright infringement are settled before a lawsuit is filed or the case goes to court. In these cases, undisclosed amounts (often quite substantial) are paid to the plaintiffs.

    In Lowry's Reports v. Legg Mason a jury awarded $19.7 million in damages to Lowry's Reports, Inc. for copyright infringement by Legg Mason, Inc. Legg Mason purchased a single subscription of "Lowry's New York Stock Exchange Market Trend Analysis" newsletter. Over the course of several years Legg Mason personnel copied, faxed and disseminated copies of the newsletter, and later posted an electronic version of the newsletter on its intranet, making it available to all employees.

    In Basic Books, Inc. v. Kinko's Graphics Corporation eight book publishers sued Kinko's Graphics Corporation for copyright infringement, alleging that in photocopying copyright-protected materials to create university coursepacks, Kinko's infringed on the publishers' copyrights. Kinko's unauthorized copying covered a wide range of materials, including text, trade and professional books. Kinko's argued "fair use," but the court disagreed. All told, Kinko's paid almost $2 million in damages, fees and other costs.

    In American Geophysical Union et al. vs. Texaco Inc., a class action suit filed against Texaco on behalf of all publishers registered with CCC, both the trial court and the appeals court rejected Texaco's argument that its photocopying activities were fair use. As a result, instead of proceeding to trial, Texaco paid a seven-figure settlement and agreed to take retroactive CCC licenses.

17. What if I cannot locate the owner of the copyrighted material, there is not enough time or it's too expensive?

    The law does not recognize a "best efforts" exception. The copyright owner may file a federal lawsuit against anyone who reproduces his or her works without permission, even in cases where the user claimed it was difficult, time-consuming or expensive to locate the owner.

18. Is there an easier way to obtain/provide permission to reuse copyrighted materials rather than to contact the rightsholder directly?

    Yes, through Copyright Clearance Center. Copyright Clearance Center is a not-for-profit company which was formed in 1978 at the suggestion of Congress to provide copyright owners and users of copyrighted materials with an efficient mechanism for the exchange of permissions and royalties. Acting as an agent for over 9,600 registered publishers and hundreds of thousands of authors and creators worldwide, Copyright Clearance Center can authorize the legal reuse of content from our extensive repertory.

19. I am looking for additional information on copyright. Where can I go?

    Businesses may refer to our Guide to Copyright Compliance for Business Professionals. Academic institutions may refer to our Campus Guide to Copyright Compliance. Publishers, authors and other creators may refer to additional frequently asked questions prepared specifically to address their needs.

    In addition, please refer to the U.S. Copyright Office's Copyright Basics Web page.

20. I am looking to register a copyright for my work (e.g., book, manuscript, sound recording, video, drawing, sculpture, photograph, computer program, game or multimedia work). Who can help me?

    Please refer to How to Register a Work, or the U.S. Copyright Office's Registration Procedures web page.

21. I am looking for more information on pending congressional bills regarding copyright law. Where do I go?

    Please refer to the U.S. Copyright Office's New and Pending Legislation web page.

22. How do I get more general information or access to more resources about copyright law, fair use, the guidelines for classroom copying or the CONTU Guidelines?

    We have listed several additional sources on Copyright Clearance Center's Web site in the Copyright Central area of copyright.com.